This debate is not the only source of relevant facts. If you really want to get into it further, I suggest doing some of your own research.
I told you that I wasn’t aware of evidence that Cheney ordered anything. You responded, more or less, that the prosecution ought to begin before evidence is collected. You can’t be bothered to cite any evidence, but you suggest I go looking for it?
There’s quite a few questions I ask on this board with an open mind. If there is evidence that shows, or is pretty convincing, that (for example) Cheney was the one giving orders and Bush was cut out of he whole torture policy, that’s something that would seriously change my mind on this issue. But when I get non-responses and tap-dancing like this, it leads me to believe there is no such evidence. Instead, it just starts to seem like the whole basis of a prosecution would be bullshit.
Because we can be.
“Left-wing academic”? He’s a former ICC judge. Now, I don’t think anything will come of this, though there is certainly enough evidence to prosecute Cheney (if not to convict), but at least get your facts straight before flippantly dismissing things.
And because we *need *to be, even in realpolitik terms. The world is a much bigger place than us, and we can’t be leaders in it if others don’t see us as being worth following. There are already enough people who hate us, and we have no reason to create more.
It’s been a few years since I followed this stuff in much detail, but the notion of a torture prosecution isn’t just political fantasy.
Among the statutes people talk about prosecuting Cheney under is 18 U.S.C. 2430A(c), which makes it a criminal offense for a U.S. national to conspire to torture someone. When the crime has actually been committed, proof of conspiracy generally just requires agreement to commit it. Cheney need not have ordered the torture or have had the power to order it in order to be liable for conspiracy. He just needs to have agreed with the conspirators to carry out the crime. Since he has publicly admitted meeting with CIA and DOD officials and approving of the interrogation techniques, that’s not really at issue.
The main questions are: Was it torture? And does Cheney have some other defense?
Based on what we know today, there is no serious argument that it was not torture under the statute or that Cheney did not know that. So the only real legal issue is the availability of defenses, including chiefly the statute of limitations, executive privileges and immunities, and the defenses created by the Detainee Treatment Act of 2005. The latter provides, basically, that if the Office of Legal Counsel advised you that what you were doing was legal then you cannot be prosecuted. For a long time that was thought to end the realistic shot at prosecuting anyone. However, we now know that Cheney and others lied to the OLC. So there’s a pretty good argument that at least those administration officials who knew what was actually going on would no longer be immune.
What’s left are statutes of limitations and executive immunities. I don’t really know how they both shake out, but even if Cheney had good arguments under them, they both constitute affirmative defenses he has to assert. They would be no bar to prosecution.
ETA: Another thing we learned from the Senate torture report was that Cheney was briefed on the details of the techniques years before Bush was, FYI. Bush didn’t get briefed until 2006, IIRC, which is after the worst of it happened.
Thank you for a very clear explanation.
What was the nature of Cheney’s lies to OLC? It seems odd to me that OLC would base a legal opinion on some assurances or statement by a policymaker that they exist to advise.
Like for example, if OLC were to issue a memo on whether the EPA has the power under statute to regulate carbon emissions, under normal circumstances, Vice President Biden telling OLC some nonsense about the issue would not really be the basis for them to formulate a legal opinion.
ETA: I just noticed that that statute you cited pertains to punishing people outside of the United States.
The CIA would brief Cheney, the OLC, and other administration officials with misinformation on what was really going on, and the OLC would churn out an opinion based on that. The probable cause that Cheney knew that this information was false is that: (1) After the Senate Report he came out and said he was aware of everything and wasn’t misled by the CIA in any way; and (2) we know he and Addington played a personal role in crafting the interrogation regime, and that the CIA was pretty cautious about getting Cheney approval for things while they happened (but, again, not briefing Bush until 2006).
It could be that Cheney really was misled, but politically he cannot admit that. But I don’t think that’s enough to dispel probable cause.
No. It specifically applies to U.S. nationals who commit torture abroad, which is were most of the really bad torture happened.
I’m taking a careful look at this. You may be right, but I’m not so sure. The statute reads:
"(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years . . .
(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—
(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.
(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties . . . ."
I’m looking at (a), (b)(2), and (c), and I’m frankly unsure of whether someone has to be physically outside of the United States in order to conspire to torture someone in violation of this section. Compare the following two sentences:
- Whoever outside the United States commits or attempts to commit torture shall be fined…
- Whoever commits or attempts to commit torture outside the United States shall be fined…
Those sentences mean different things, do they not? In the first, the “outside the US” refers to the “Whoever” and in the second, the “outside the U.S.” refers to committing torture.
I’m not sure where you’re confused. It’s clear that the torture has to take place outside the U.S. But it’s also clear that the statute allows for the prosecution of U.S. nationals (at (b)(1)). I think maybe you’re suggesting that the conspiracy has to be formed outside the US–like it would only apply if Cheney met with CIA officials in Poland–but there’s no textual basis for that reading of the conspiracy provision.
In any event, you need not rely on your own interpretation of the text. The statute was passed as part of our implementation of the Convention Against Torture. Even the Bush OLC (and that’s saying something!) thought it applied to decisions made in the US to torture detainees held abroad.
Excellent and fair point.
Wow…that sounds pretty tight to me. Thanks for the excellent post. A lot of times these threads seem to boil down to political ramblings and it’s hard to decide if it’s merely a right/left break down or if there is actually something there.
What statutes of limitations are on this that you are referring too? What executive immunities apply? Also, since this seems so clear, why was nothing done? I mean, sure, I know that it would have widened the divide between Republicans and Democrats, but if you have something that clear why NOT pursue it? In the end it seems to me that if they got a conviction that would have vindicated pursuing it, after all.
Well, it is one of the questions posed by the title of the thread, so it seems a relevant point.
The statute of limitations depends on which statute we’re talking about (there are a half-dozen you could plausibly use), and which victim you think provides the most airtight case. The statute for the extra-territorial torture statute is eight years unless there is serious bodily injury or death, in which case there is no limit. I think it’s a fair approximation that in July 2015 some of the statutes have run for some of the victims, but not all of them.
As for executive immunities, there’s very little law out there. Even as to the President himself the issues are quite unclear, and I imagine it’s even more jumbled for a Vice President (who is not, for example, the commander-in-chief for purposes of his involvement in these matters). If such a prosecution happened, it would likely be the case where such law would be made.
Well, I think up until the Senate Torture Report (and the Bush Administration officials’ reaction to it), most observers thought the Detainee Treatment Act of 2005 immunity was the end of the matter. So that’s certainly part of it.
But Obama has mostly explained his decision not to pursue anyone for torture in political terms. It would have blown up the rest of his agenda, and made the partisan divide even more insurmountable. I think he’s right that it isn’t an easy call, even if I would have made a different one.
So let’s say there was torture going on. Did Cheney have the legal authority to order it?
If he knew about it, did he have the authority to stop it?
He doesn’t have the constitutional or statutory power to order it or stop it, AFAIK. But he does have that authority granted to him by the President as his agent. If Bush says, “Cheney is my man on interrogating detainees,” and Cheney goes into a meeting and says, “Let’s waterboard 'em like the KGB,” then that order can have legal force on behalf of the President. If it is the case (as it appears) that he knew the CIA was misleading Congress, the OLC, and others, then he could have informed people of that fact.
But, again, his criminal liability need not turn on his power to order or authority to stop the torture, any more than your criminal liability for conspiring to rob a bank with me turns on your ability to order me to rob the bank.
To my mind the complicating legal factor is the torture was authorised by medical practitioners - they were authorised techniques.
Now it’s not for Cheney to second guess trained medical professionals and he would argue - I believe successfully - that he didn’t know those authorised techniques wee illegal under international law. And that’s what matters; what did he think in his own mind.
It’s all BS or course - a set up in the way Blair organised a ‘Dodgy Dosier’ through 3rd parties and which he subsequently relied on to form his view on the invasion.
It’s interesting, or maybe just sad, that we’ve only been discussing torture and not on starting a war of aggression. That’s a war crime, too, and the lies about WMD’s are evidence of it if not crimes in themselves.
It really isn’t that hard to demand your elected leaders not commit war crimes, people. Not hard at all. It is *not *too much to expect, now is it?
Are you talking about trying Bush in a US court or in some international court?